Procedure is handmaid to justice but only for few.

Was Salman Khan given special treatment?

‘Procedure is hand maid to justice’ is a famous quote from a judgment delivered by Justice Krishna Iyyer, a former Supreme Court Judge. More so, it was observed in a case arising from the scope of discretion to grant bail to an accused. With the above quoted sentence Justice Iyyer was reminding that procedure must not obstruct the justice rather it must serve justice like a maid. That observation was made decades ago but little has changed except for the worse.
I received a joke by texting which referred to grant of bail to Salman Khan, by mentioning his application in High Court without impugned order. Joke is:

“Thank God bail has been granted to Salman. We had already lost faith in the system and upon denial of bail we would have lost faith in power of money as well.”

The above jest may not represent the sentiment of all but a section of people do feel that he has been favoured by High Court. Reference to money may have bearing upon the fact that Salman hired the most expensive lawyer.

Actually it can not be disputed that suspension of sentence pending appeal is discretionary and in a case where accused was on bail throughout the trial, he should not be denied the same courtesy during bail. In practice it is often followed but only after a hearing during which the convict remains in jail.  It is not the merit of the decision but the process and manner it was done. Some of these are dealt in seriatim.

Mentioning and Listing of a matter:

Ordinarily in no High Court and Supreme Court one could walk in with a petition and insist upon court to hear it. How Salman Khan’s lawyer walked in and walked out with a bail order is astonishing. Petitions are filed with registry and it takes one or more days in listing. Again the Chief Justice is administrative head and if above procedure is to be by-passed it has to be ordered by him/her. Now many questions beg the answer in this case:

1. Was written appeal filed in the registry of Hight Court or presented in court?
2. Was the above appeal was accompanied with application for suspension of sentence or only this application was made?
3. Was the above two mentioned before Chief Justice and he allowed it to be listed same day before relevant court?
4. If it was directly mentioned before relevant judge, was he expressly authored to accept mentioning and listing of fresh matters by Chief Justice? Or
Is it the practice of Bombay High Court to accept new matters across the bar, like Magistrate’s court?

Copy of impugned judgement:

A petition when filed in Appellate Court has to be accompanied by judgement if the court below. In this case the very ground for interim bail was that he has not been given the judgement at the time of conviction. This argument is surprising because the accused’s counsel did argue on sentence for two hours. If judgement was not handicap for sentence why was it not for appeal. But the procedure required this judgement which takes time to procure. It also takes one day for appeal to come for hearing. Therefor after conviction every person has to go to jail at least for 48 hours. The interim bail saved him from this humiliation which any other citizen had to undergo. This raises few more questions:

1. Was appeal filed with application for exemption of judgement or only oral prayer was made for exemption?
2. Is such exemption has ever been given to any other accused person?
Without copy of judgement the court did not have reasons of trial court therefore it can be assumed that appellate court had not applied its mind on merits of judgement. Therefore the questions are:
1. On what consideration the interim bail or suspension of sentence granted?
2. Can appellate court suspend sentence without looking upon the merits of judgment convicting the appellant?
3. Was advance notice given to public prosecutor? If not
4. Can Appellate Court grant bail or suspend sentence without notice to Public Prosecutor?

Remedy for non-availability of judgement!

It is a procedural lapse which must not happen. Convicts rather ordinary convicts suffer from such procedural lapse. Ideally, if it happens, accused’s counsel is entitled to refuse to participate in sentencing process as finding in judgement are required for proper hearing on sentence. A lawyer who is worth the salt must know. But if s/he is browbeaten to participate in sentencing, he must have his protest recorded and this can be a ground for impeaching the sentencing in appeal.

Additionally or alternatively it is matter which can be raised by writ petition or it’s supervisory jurisdiction. Both are time consuming and entail the same procedure as in appeal.

This is the reason I started with the quote that procedure should be hand maid to justice but it actually is not. In actual practice the procedure bludgeon the citizens and lawyers alike. To get a matter listed in a court is not easy rather a specialized job which only accomplished clerks can do. When any petition is filed in High Courts and Supreme Court, it thoroughly inspected by trained staff and it takes a skillful and patient clerk nearly whole day in one go or several hours spread over several days to get a matter listed. This is because often because registry officials keep on making new queries or objections. Larger and heavier the petition, chances are that it will have more objections and more time it will take to list. To meet such situation, Supreme Court has a procedure for direct listing by mentioning but that again take at least one day. I am wondering what Bombay High Court is doing and what is its procedure?  Various Other High Courts I have practiced in, have similar procedure, as mentioned above. Has Bombay High Court some other unique procedure?

There is a possibility. Fan following. I was not keeping tabs at that time. But was large fan following affected decision or the procedure? Because if it has, the appeal must not continue in Bombay and should be transferred to some other High Court where Hindi is not the language. Why not Sikkim? A picturesque state with scenic beauty with very little workload and just three judges in High Court.

Presently somebody seemed to have challenged the order in Supreme Court on some or all of above grounds. I have no personal knowledge except for news reports. Let’s only hope that system evolves to become less empirical in days to come.

About Sandeep Bhalla

A lawyer, thinker, author, Linux/Ubuntu power user and sometime an economist or gardener or philosopher or cook or photographer depending upon the current thought and environment. View all posts by Sandeep Bhalla

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